The Legal, Practical and Policy Dilemmas in Enforcing the Sexual Offences Act of Kenya in Relation to Consensual Adolescent Sex

Abstract

This article analyses the dilemmas encountered in enforcing the Kenyan law on defilement, focusing specifically on consensual sex between adolescents. It argues that, although punishing adults who have sex with minors is clearly justified, punishment cannot be justified in the case of minors who engage in “experimental” sex with each other. It challenges the current legal regime that allows only one minor (male) to be charged, and not the other (female), noting that neither of the mutual participants would feel vindicated by punishing the other. Similarly, it shows that charging both participants also poses legal and policy challenges. Consequently, it argues that charging adolescents for defilement when they have consensual sex with each other goes against the very policy that informed the adoption of the anti-defilement provisions. The article recommends that Kenya's legislation is reformed to create a legal regime that protects juveniles from sexual violation without victimizing them.